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Since the Supreme Court’s 2010 ruling in Citizens United v. FEC, much has been made of the corrupting influence of big money in politics — and rightfully so. The decision allowed donors to circumvent contribution limits by giving to “independent” political action committees (PACs), which could then spend unlimited amounts in service of candidates, so long as PACs and candidates did not “coordinate” their strategy or messaging.

While supporters of the ruling argued that the wall between PACs and candidates could be effectively policed by regulators, any such optimism was dealt a fatal blow this April by a most unlikely executioner: an administrative law judge in Yavapai County, Arizona.

The case involved allegations of strategic coordination between Arizona Attorney General Tom Horne and his former aide, Kathleen Winn, who ran an independent PAC supporting Horne in his 2010 run for Attorney General. Emails and telephone records gathered by the FBI revealed that Horne and Winn were in constant contact as her PAC finalized an attack ad against Horne’s Democratic opponent, Felecia Rotellini, that many credit with securing Horne’s narrow victory.

The arrangement also exemplified the classic revolving door between political staffs and purportedly independent PACs. Winn had worked for Horne’s campaign through the Republican primary, but she left his team to form a single-candidate advocacy group whose sole purpose was helping Horne win. After Horne’s victory in the general election, Winn — whom Horne referred to on election night as “our secret weapon” — was hired as Horne’s new community outreach aide.

Despite this significant evidence, Judge Tammy Eigenheer ruled that Horne did not violate Arizona’s prohibition on strategic coordination between candidates and independent PACs. The decision came as a blow to good government advocates because it proves that the threat of state prosecution is just as toothless as oversight by the Federal Election Commission or federal prosecutors. In fact, the Yavapai County case was filed only after the U.S. Attorney for Arizona decided not to pursue federal charges against Horne — a decision typical of the federal government’s laissez-faire approach to coordination.

For example, an FEC investigation in 2009 uncovered six months of emails between a corporate PAC and the campaign team of former Michigan congressmember Joe Schwarz specifically discussing advertising strategy. In one email, Schwarz’s campaign director even provided the content for an ad that the PAC ran on local radio stations the following week. Despite this “smoking gun,” the FEC fined Schwarz and the PAC just $2,500 each.

Given the lack of federal enforcement, legal analysts had hoped that state civil proceedings like Horne’s could provide a meaningful check on illegal coordination. Unlike criminal charges, which must be proven beyond a reasonable doubt, civil proceedings apply a lower burden of proof and relaxed evidentiary rules, and can carry treble damages. But Judge Eigenheer’s ruling that the prosecution’s strong circumstantial case was insufficient to sustain a finding of guilt even in a civil trial will surely deter state and federal prosecutors from pursuing similar cases in the future.

And so, with the FEC, federal prosecutors, and state law enforcement unable or unwilling to ensure the independence of PACs, what options are left? A constitutional amendment is needed to limit corporate personhood and restore the government’s authority to regulate money in the electoral process, but the prospects for passing such an amendment appear limited in the current political climate. Nonetheless, two measures should be adopted immediately to specifically address the coordination problem:

• Federal and state governments should enact and enforce a one-year waiting period for individuals trying to move between politicians’ staffs and single-candidate PACs. Such limitations, similar to those for lawyers and military contractors transitioning between the public and private sectors, will stop (or at least slow) the revolving door.

• Steps should be taken to encourage witnesses with personal knowledge of coordination to divulge this information. Examples could include whistleblower protections and monetary rewards for disclosures. The federal False Claims Act allows private citizens to file “Qui Tam” suits against contractors who defraud the government, and whistleblowers can receive a portion of any recovery. There can be no greater fraud against the government that the manipulation and corruption of the electoral process, and coordination whistleblowers should be rewarded accordingly.

These measures will help regulators police the wall between candidates and so-called independent groups. While no panacea, they are important first steps toward reducing the corrupting influence of big money in the political process.

Leif Dautch is a Santa Barbara native currently serving as a deputy attorney general for the California Department of Justice.

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Comments

I think the ultra-rich are happy that they can buy Congress and turn the rest of us into mindless voting peons every four years. We are after all quite happy with the arrangement, we haven't yet complained (except me), as we keep voting for the same'ol, same'ol, every two or four years and keep-towing-the-line.

If the "ultra-rich" can buy the legislature, how does this explain our virtually 100% Democrat, true blue state? Are these the ultra-rich we are supposed to eat?

I could have sworn that used to be a buzzword for Republicans, who are now virtually gone from this state. The better word for the "ultra-rich" in this state is Democrat seed corn, and they are now happily munching away on that now too.

Stockton bankruptcy still pending and could be explosive if it follows Detroit' rulings: yes, you can claw back public pensions when there is no more money in their accounts. No, you cannot stick the deficits to the taxpayers even if your state constitution says you can.

foo, I got lost in your convolutions. Could you please expand a little? The Dem Party isn't exactly immune to corporate largesse. Also, did you mean that the ultra-rich are jobs-makers, so that eating them hurts the economy?

I could have sworn "the ultra-rich" was a buzz word for Republicans. Republicans preferred the word "successful" instead of the now maligned "ultra-rich", but that go no traction among the eat the rich progressives.

Now read on from there. Prove me wrong. I am fine with that. I would love to see all this Democratic fostered and insidious class resentment and class envy taken out of the national debate.

But the irony was noted the remaining "ultra-rich" left in this state are now the Leftie high-tech moguls. Will the Democrats commit cannibalism on their own, just to get their hands on the "ultra-rich's" fair share to support their public sector union buddies?

Actually foofighter the ultra-rich are not Republicans, you don't know them, they are globalists who worship lucifer. They come from specific bloodlines that are at least several hundred years old and own nearly half of the wealth in the entire world. They support both the neo-conservative wing of the Republican Party (CFR, Bushes, Zionists (they are not Jewish)) as well as the globalists (Bilderberg, IMF (central banking), UN, Obama, Clintons).

Now that I've cleared up who the "ultra-rich" are, the question is how can we keep money from influencing politics?

It's actually a very simple answer.

There was one congressman who retired a couple years ago, but before he retired not a single special interest group or lobbyist would show up at his office to speak to him. They all knew it was a waste of time. They knew he could not be persuaded to vote for their new unconstitutional laws and bills.

The answer is limited government that supports property rights. Companies should not be allowed to pollute others' property. When people used to sue companies for polluting, the companies go upset and went to the government and asked them to pass laws that allowed them to pollute so people couldn't sue them. These were called "regulations". Regulations "regulate" how much companies are allowed to pollute and keep the company's liability for pollution to a minimum.

Environmentalists have been tricked into supporting regulations on pollutants and spend all this time in political battles - not only do they have to focus on increasing regulatory standards, but they have to waste time on the subject of this very article - making sure that companies who pollute don't have too much influence on politics.

If we went back to a limited government that respected property rights, it would be cut and dry. If a company pollutes somebody's land or a shared watershed, the company pays to clean it up. Very simple. Environmental groups could still exist, people could donate to them and they could go out and make sure companies aren't polluting and if they are, give that information to those being affected and help ensure they win their court cases.

Instead of focusing on the environment, environmental groups have to focus on politics. Yuck, I think I'd rather deal with a sewage spill.

But the union bosses and their dark PAC money are no better than the Koch's.

The public employee needs to be discussed separately from the public employee union bosses and the money and corruption they curry with elected officials at the expense of the taxpayer. Public service is a noble profession. Public servants deserve to be decently paid, but the pension abuses associated with the corrupt practices between the unions and the bought and paid for politicians must stop!

Should former District Attorney Tom Sneddon still get paid $230,000 a year for the rest of his life?

This is why there is such a huge looming hole in the county pension fund. Because while being paid extremely well to do his job when he was working, he now also gets paid lavishly to not work.

The highest military pensions for 30 year service four star generals rarely top $100,000 a year, plus approx $10,000 in medical and occasional base exchange shopping privileges.

And Tom Sneddon who went down in infamy wasting millions of tax dollars on his failed prosecution of Michael Jackson now gets $230,000 a year for life? Which means he was paid close to that amount while he was working as well.

Something is very wrong with the county employee compensation system. It must be fixed. Sure, Tom contributed some money to his pension but in no way did he contribute anything close to allow this level of pension compensation.

Sneddon, our public servant retired at our expense on the equivalent of $5 million dollars earning 5% for life.

Is that how we should reward "public servants"? And that is just the worst case, while Transparent California provides pages and pages of similar scenarios of high-flying pension payouts we now have to fund forever.

Botany has a point, but union people are different and they are real people, as KV carefully points out. Foo, I am uncomfortable with you singling out actual people. Sneddon, whatever you thought of him, has earned this pension. Should CEO's in our country get those utterly enormous salaries, that are 400x the salary of average workers in these companies? When you advocate breaking the sanctity of "contracts" I am inclined to push government to intervene much more directly into financial markets, CEO compensation... Or let's begin using resources to NAME those wealthy individuals in this town who have offshored their money to avoid paying legitimate taxes [Ty Warner is an e.g. that has been in public for months]? you might not want to enter that arena...

The big difference between CEO's and public employees is the later is funded by the taxpayer, the former is a private company that should have the right to operate as it pleases within the law. (However, I believe that corporate governance laws should be revised, but that's another argument)

Ty Warner has certainly violated the law. Is he any more a criminal than someone that crossed the border illegally or overstayed his/her visa? Only in your perception I think.

DD, since the public is paying Sneddon's pension and now asked to make up the difference that there is insufficient funding to keep paying those public pensions, yes you do need to know what pensions have been earned (promised and contracted) and decide whether this county pension system should continue the way it is going.

Sneddon stood out because he is at the top of the list on the public records for SB County found on Transparent California.

But he is joined by many other familiar names whose similar pensions we are now paying, including Roger Aceves. Yes these large pensions were "earned" because this is what Democratic supervisors were willing to promise them and the payments are now due for those long string of promises.

But this does not mean this is how we should continue the county pension programs, as business as usual because taking a long, clear look at this scheme is wholly unsustainable and not even fair.

I'm sure he could live comfortably on $70,000 a year for the rest of his and his family's life. If not, then he has some downsizing to take care of. Greed is the problem and he is but krill in the ocean of greed that feeds off us like vampires. The big money grabbers are not union.

The unions bargain for what they get. They didn't steal anything. Nor should they ask for a penny less than what they think they can get.

The problem is the supervisors for giving it to them. The problem is too many years of supervisors being endorsed and supported by those same unions.

The problem is the voters who have yet to see this unhealthy alliance between the unions and the elected officials has taken us down the wrong road.

Union employees are not "family". Supervisors are not mommies and daddies. They are not there to dispense goodies to their favored children.

Both parties are professional adults who independently balance their needs and resources in the best interests of all the residents of the county; not just small special interest groups with the most to gain.

foo your comment re "theory become actual practice" makes little sense; it is inappropriate to use an individual's name. Repubs and Dem's all elected the democratic folks who voted for all this, don't demonize. You have no loyalty to public servants; hating the public pensions is your silly, repeated mantra. Boring. As before, WHO PAYS YOU TO DO THIS?

Tom Sneddon's name comes up on the top of the list on a public website revealing public information about the payment of public pensions.

You should know if you did not what these public servants are getting from their years of public service, bargained for with our current publicly elected public representatives. No secrets.

Tell you what, I will go to the Transparent California website and list the top 10 SB county public pensions holders to take the singular onus off Mr Sneddon. Though he earned this pension because those were the rules in place at that time.

I am interested in changing the rules; not taking away what was freely given at the time. And to do this, one does need to change the players.

Voters do need to get long overdue union-friendly supervisors off the board of supervisors and install those who can start fresh. And hold their feet to the fire until county compensation reform is fully instituted.

When one sees the level of public largesse promised people who no longer work for us, that exceeds military four star general's retirement pay by at least twice, it should give our elected representatives pause and the voters nightmares they let this happen on their watch.